may be the consequence of beating, yet, if the primary intention were not to kill, the intention of beating would not make burglary. The entry must have been for a felonious purpose. It should, however, be observed that if a felony be actually committed, the act will be prima facie pregnant evidence of an intent to commit it; and it is a general rule, that a man who commits one sort of felony in attempting to commit another, cannot excuse himself upon the ground that he did not intend to commit the principal offence. But it seems that this must be confined to cases where the offence intended is, in itself, a felony.1

Under the common law, where the intent to commit a felony was requisite to constitute the offence, a man was indicted for burglary with intent to kill a horse, and it appeared in evidence that the prisoner broke and entered a stable belonging to a dwelling-house for the purpose of laming a horse that was kept there, in order to prevent him from running a race, and he accordingly effected his purpose by cutting the sinews of the fore leg, but the horse afterwards died of the wound. As wounding a horse was not at that time felony, the prisoner was acquitted of burglary, but he was afterward indicted for killing the horse, and convicted.2

Where also two poachers went to the house of a game-keeper, who had taken a dog from them, and, believing him to be out of the way, broke the door and entered. On an indictment for a burglary, it appeared that their intention was to rescue the dog, and not to commit a felony. VAUGHN, B., directed an acquittal.3 The word "building" does not require the structure to be entirely finished.4

A cellar in which are put goods for removal and sale has been held to be a warehouse.5

1 The words "storehouse" and "warehouse," in their popular acceptation, signify a building or apartment for the temporary deposit of goods.

An indictment charging the breaking into a store in which

1 Russ. on Cr., 822; 1 Hale, 561; 3 Inst., 65; Sum., 83; Kel., 47; 1 Hawk. P. C., ch. 38, § 36; 4 Black., 227; 2 East. P. C., 509–514.

Dobb's Case, 2 E. P. C., 513.

' Math. Dig. C. L., Burg., 48. See also 5 C. & P., 524.

Rex v. Worrall, 7 Car. & P., 516; Com. v. Squire, 1 Met., 258.

• 1 Leach, 287; Rex v. Godfrey, 2 East. P. C., 642; Reg. v. Hill, 2 Moody & R., 458.

goods are kept for use, sale and deposit, is not sustained by evidence of breaking into an inner room of a building which was not a store, but a mere business office of the board of under writers, in which were kept merely furniture and articles for their business use.1

Where the Gulf brewery was a corporation occupying a room in the basement of the court-house, which it had thus occupied for several years for storing beer, by the consent of those having the supervision of the building, and that such room was separated from other rooms in the basement by partition walls, which were kept locked, the keys remaining in the possession of the agents of the corporation. The prisoner entered the basement through an open window into a hall occupied for public purposes, and thence entered the room occupied by the Gulf brewery by breaking through the door. It was held that the room broken into was properly described as the storehouse building of the Gulf brewery; that the door which was broken was the outer door of the storehouse, and that the prisoner was guilty of burglary in the third degree.2

(j) Of breaking and entering a building within the curtilage of a dwelling house.

By the Revised Statutes, the first subdivision of the third degree of burglary provides that any person who shall be convicted of breaking and entering, in the day time or in the night time, any building within the cultilage of a dwelling house, but not forming a part thereof, with intention to steal therein or to commit any felony, shall, upon conviction, be adjudged guilty of burglary in the third degree.

The word "curtilage" is defined to be the open space situated within a common inclosure belonging to a dwelling house."

Sir WILLIAM RUSSELL (1 Russ. on Cr., 861), in commenting upon the English statute (7 and 8 Geo. IV., ch. 29, § 14), punishing the breaking and entering of a building within the curtilage of a dwelling house, and occupied therewith, but not forming a part thereof, says: "This enactment, specifying as it does in express terms, a building within the curtilage of a dwelling

house, appears not to apply to many of those buildings and outhouses which, although not within any common enclosure or curtilage, were deemed by the old law of burglary parcel of the dwelling house, from their adjoining to such dwelling house and being in the same occupation. The inquiry under this provision of the statute will be simply whether the building is within the curtilage or homestall, but it may be useful to refer to some of the points formerly decided in cases of burglary in which it became material to consider whether particular buildings were parcel of a dwelling house, and the circumstance of their being situated within a common inclosure appears to have been treated as a material ingredient.'

Under the English statute it was held that the offence was not committed by breaking into a centre building used for the purpose of trade, but having no internal communication with the dwelling houses which formed the wings. The Judges upon a case reserved, having held that the center building being a place for carrying on a variety of trades, and having no internal communication with the adjoining houses, could not be considered as a part of any dwelling house, and that it was not to be considered as under the same roof as the houses adjoining, though the roof of it had a connection with the roofs of the houses.1

Where, upon an indictment for breaking and entering a building within the curtilage, it appeared that there was a large square inclosure at the back of a dwelling house, surrounded on all sides by a barn, cow sheds, a granary, pig styes and walls, and that within such larger inclosure there was a lesser inclosure, abutting on one side on the back of the dwelling house, and another on the pig styes, and the third and fourth sides of which were formed by a wall about four feet high, which separated it from the other part of the large inclosure, and the back door of the house entered into such lesser inclosure, and out of it there was a gate into the larger inclosure, into which there was no door immediately leading from the house, and some corn was stolen out of the granary, which was on the opposite side of the large inclosure from the house, it was held that the whole of the larger inclosure was within the curtilage, and not merely the lesser

inclosure immediately at the back of the house, and consequently that the granary was a building within the curtilage.1

In a case where the prisoner had broken into a goose house which opened into the prosecutor's yard, into which yard the prosecutor's house also opened, and the yard was surrounded partly by other buildings of the homestead and partly by a wall, some of which buildings had doors opening backwards as well as doors opening into the yard, and there was a gate in one part of the wall opening upon a road, the Judges held that the goose house was part of the dwelling house."

A door wall or other fence, forming part of the outward fence of the curtilage, and opening in no building, but into the yard only, was held not to be such a part of the dwelling-house, as that breaking thereof would constitute burglary; and it was held to make no difference that the door broken was the entrance to a covered gateway, and that some of the buildings 'belonging to the dwelling-house, and within the curtilage were over the gateway, and that there was a hole in the ceiling of the gateway for taking up goods into the building above.3

The prisoner broke open a store in the night time; the store was at the distance of twenty feet from the dwelling-house, and no person slept in the store; the house and store both stood on the same lot, and on the same line, fronting on the public highway; there was no fence between the house and store, nor any inclosure around them, but both of them, and the lot on which they stood were open to the street, it was held the store was not within the curtilage, as there was no fence or yard so as to bring them within one inclosure.4

(k) Principals.

The general doctrine respecting principals in the second degree, and aiders and abettors, applies to cases of burglary, and the breaking and entering by one, is made the act of all the party engaged in the transaction, and legally present when the act is committed. If A, B and C go upon a common purpose and design to commit a burglary in the house of D, and A only

1 Russ. on Cr., 861.

• Id.

1 Russ on Cr., 864.

Peo. v. Parker, 4 John., 424.

actually break and enter the house, B stand near the door, but do not enter, and C stand at the lane's end, orchard, gate, etc., to watch, this will be burglary in them all, and they are all in law principals.1

So, where two persons acted in concert in planning and executing a burglary, and one of them entered the house and brought out the property, while the other waited on the outside, both were held to be guilty of a breaking and entering."

X. CAUSING INJURIES OR DEATH BY EXPLOSIONS FROM SALTPETRE OR GUNPOWDER IN NEW YORK CITY.

A special statute, applicable to New York city, provides that if any person be injured within certain limits mentioned in the act by means of any explosion, resulting from the violation by any other person or persons of the provisions of the said statute, and relating to saltpetre or gunpowder, the person or persons guilty of such violations shall, upon conviction before the court of general sessions, be punished by imprisonment in the State prison for a term not exceeding two years; but if such violation occasion the death of any person or persons, the offender shall, on conviction, be deemed guilty of manslaughter in the third degree, and punished as provided by law for that crime.3

XI. CRIME AGAINST NATURE.

The detestable and abominable crime against nature, committed with mankind or with a beast, is also a felony.4

5

This offence, otherwise known by the names of sodomy and buggery, is said to have been brought into England from Italy by the Lombards, and consists in a carnal knowledge committed against the order of nature by man with man or in the same unnatural manner with woman, or by man or woman in any manner with a beast.6

"Fortunately for the honor of human nature this offence is not of frequent occurrence, and it is equally fortunate for the morals of the community that prosecutions are rare. The crime is one of